New Delhi: At a time when vaccination for COVID-19 is looked upon as the panacea for economic recovery, the Gauhati high court has seen merit in questioning the policy of the state government which discriminates against the non-vaccinated population by denying them economic benefits.
In Madan Mili vs State of Arunachal Pradesh, the petitioner challenged clause 11 of the order dated June 30, issued by the state government to the extent that it provides that for developmental works in both public and private sector, temporary permits may be issued provided such persons are vaccinated against COVID-19.
Justice Nani Tagia of the high court, in his order issued on July 19, noted the petitioner’s submission that the Union Ministry of Health and Family Welfare, in a reply furnished under the Right to Information (RTI) Act – which is available on the ministry’s website – has conceded that vaccination is not mandatory, but voluntary. The petitioner also relied on the answer given on March 19 in the Lok Sabha to an unstarred question by the Union minister of state in the Ministry of Health and Family Welfare, stating that there is no provision of compensation for recipients of COVID-19 vaccination against any kind of side effects or medical complication that may arise due to inoculation.
The petitioner, therefore, contended that the state government’s order restricting the issue of temporary permits for developmental works in both private and public sectors to only those who are vaccinated has interfered with the rights of the citizens under Article 19(1)(d) of the constitution to move freely throughout the territory of India.
The state government, on the other hand, argued that due to the rising cases of COVID-19 cases in the state, the restrictions provided in clause 11 of the June 30 order are reasonable, as the same has been issued with the sole objective of containing the pandemic and the further spread of the disease in the state.
While the high court issued notice to the respondents to hear the case in detail, it found merit in the petitioner’s plea for interim relief for suspending clause 11 of the order, as the order is valid from June 30 to August 1.
The state government had issued the June 30 order under Section 22(2)(H) of the Disaster Management Act, 2005. The high court noted that those who are not vaccinated have been denied entry to the state for developmental works in both the public and private sectors.
The high court conceded that the right guaranteed under Article 19(1)(d) of the constitution is not absolute and the state may impose reasonable restrictions on it in the interest of the general public or for the protection of the interests of the Scheduled Tribes. While putting any restrictions, however, they must be reasonable, conforming to the requirement of Article 14 of the constitution as well, the judge observed. Article 14 guarantees to every person the right not to be denied equality before the law or the equal protection of laws. Equality before the law means that amongst equals, the law should be equal and should be equally administered and that like should be treated alike, the high court explained.
Classification of persons into groups for different treatment of such groups is permissible if there is a reasonable basis for such difference, the high court held. Article 14 forbids class legislation but does not forbid classification or differentiation which rests upon reasonable grounds of distinction. In other words, the classification must always rest upon some real and substantial distinction bearing reasonable and just needs in respect of which the classification is made, the judge explained.
Relying on oft-repeated case law on the subject, the judge underlined two conditions that must be fulfilled, namely, that (i) the classification must be founded on an intelligible differentiation which distinguishes persons or things that are grouped together from others left out of the group; and (ii) the differentiation must have a rational relation to the object sought to be achieved by such classification.
The judge held that there is no evidence available either on the record or in the public domain that COVID-19 vaccinated persons cannot be infected with the novel coronavirus, or he/she cannot be a carrier of the virus and consequently, a spreader.
The judge also relied on a previous judgment of the high court in In Re Dinthar Incident Aizawl v State of Mizoram and Others on July 2. In this case, the high court found the restriction placed only upon the unvaccinated persons, debarring them from earning their livelihood or leaving their houses to obtain essential items as unjustified, grossly unreasonable and arbitrary. As the vaccinated and unvaccinated persons would have to follow the COVID-19 appropriate behaviour protocols as per the standard operating procedure (SOP), there is no justification for discrimination, the high court had held.
Therefore, the high court reasoned that clause 11 of the order is not founded on intelligible differentia. Nor does it have a rational relation/nexus to the object sought to be achieved by such classification, namely, containment and further spread of COVID-19.
The high court thus saw no difficulty in staying clause 11 of the order, till the case is heard on July 28. The outcome of the case will be significant for the scope of discrimination on the ground of vaccination, and for restricting access to economic recovery following the lifting of lockdown restrictions elsewhere in the country.
